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Judge enters permanent order allowing recording of police

By Tal Kopan

12/21/12 03:02 PM EST

A lower court judge in Illinois finalized a decision this week that allows the ACLU of Illinois to audio record police officers while they are publicly performing official duties, issuing a permanent injunction against enforcing Illinois' eavesdropping law in such instances.

The Supreme Court declined to hear the State’s Attorney’s appeal to a federal court decision in favor of the ACLU in late November, which effectively left standing the appellate court’s injunction against enforcing the law and sent the case, Anita Alvarez v. ACLU of Illinois, back to district court.

U.S. District Court Judge Sharon Johnson Coleman granted the ACLU’s motion for a summary judgment and permanent injunction against enforcement, which the state did not oppose. Saying the statute is not tailored to promote any public interest in the case, Coleman found that the legislation violates the First Amendment.

At issue in the case was an Illinois eavesdropping law that prohibits any recording of a conversation unless all parties consent. In 2010, the ACLU challenged the enforcement of the law against its police accountability program, in which it sought to record “public conversations with police who are performing their public duties in a public place and speaking in a voice loud enough to be heard by the unassisted human ear,” according to the ACLU website.

The law has led to at least three prosecutions of civilians for recording police officers in the past three years, Judge Coleman writes, including a woman who was acquitted in 2011 of eavesdropping charges for recording investigators she said were pressuring her to drop a sexual harassment complaint against a patrol officer.

The ACLU on Friday hailed the ruling for bringing “the matter to an end.”

“The judgment confirms our long-articulated belief that in order to make the rights of free expression and petition effective, individuals and organizations must be able to freely gather and record information about the conduct of government and their agents – especially the police. In an age when almost everyone carries or has access to a smartphone, the recording and dissemination of pictures and sound is inexpensive, efficient and easy to accomplish. In short, the technology makes almost anyone a citizen journalist, deserving of protection under the First Amendment. While this ruling is limited to the work of the ACLU of Illinois in monitoring police activity, we believe that it will have a ripple effect throughout the entire state,” Harvey Grossman, legal director of the ACLU of Illinois, said in a statement.

Technically, the enforcement ban applies only to the ACLU and its employees and agents, but officials with the group said they hope the state will respect the order when dealing with others as well.

The State’s Attorney’s office did not immediately respond to a request for comment.